[reprinted without permission from the Boston Globe, 30 March 1992]
Group Seeks Repeal of Old Statutes on Sex
----------------
By Patricia Nealon, Globe Staff
----------------
Gay activists are seeking repeal of archaic statutes that
make certain kinds of homosexual -- and heterosexual --
behavior a crime.
In its major legislative effort this session, the Coalition
for Lesbian and Gay Civil Rights wants to make Massachusetts
the 26th [sic, it should be 27th] state to repeal or reform
laws prohibiting sodomy, adultery, and fornication --
legally defined as sex between an unmarried man and an
unmarried woman.
Although the crimes are rarely, if ever, prosecuted,
supporters of the bill say the laws, come of them centuries
old, threaten the personal freedom of gays and heterosexuals
alike and should be removed from the books.
"It's really incredible that a state such as Massachusetts,
which has such a strong record on civil liberties and civil
rights issues would still have these antique laws on the
books," said David LaFontaine, lobbying director for the
Coalition for Lesbian and Gay Civil Rights, which crafted
the bill along with its chief sponsor, state Rep. David B.
Cohen (D-Newton).
"It's completely inconsistent with laws like the gay rights
law, which protects gay people and says they can't be fired
from their jobs," added LaFontaine, referring to the
landmark 1989 legislation that prohibits discrimination
against gays in housing, employment, credit, and public
accommodations. "At the same time, they can be arrested for
having sex in their houses. It's ludicrous."
The Legislature's joint committee on the judiciary will hold
its first public hearing on the proposed legislation
Wednesday at the State House. The legislation, supporters
stress, pertains only to "private, consensual, noncommercial
sexual acts between adults."
By broadening the legislation to include heterosexual crimes
such as adultery and fornication and by framing the debate
as a privacy issue, backers hope to build support. Any
unmarried person who engages in sex is a criminal under
current law, they point out.
"I really think it's bad public policy to have laws on the
books which make 75 percent of the population subject to
arrest for no sensible reason," LaFontaine said.
This is the second time in a month that the issue of archaic
sex laws has been raised. Three weeks ago, a Boston divorce
lawyer asked the state Supreme Judicial Court to
decriminalize adultery, arguing that parties in divorce
actions frequently refuse to testify for fear of being
charged with the crime.
The proposed legislation would repeal the adultery statute
as a criminal offense but would keep it as grounds for
divorce. Conviction on an adultery charge now carries a
maximum three-year prison term and a $500 fine.
The legislation would also scrap the fornication statute,
which makes sex between an unmarried man and an unmarried
woman a crime punishable with a three month jail term and a
$30 fine.
And the bill would also repeal the section of the state
criminal code that prohibits anal intercourse, described as
"an abominable and detestable crime against nature,"
language the coalition terms "offensive." Under current
law, a single act carries a maximum 20-year prison sentence.
"Among gay people it is well known that homosexual sexual
behavior is illegal and it creates an atmosphere of fear and
intimidation to know that people could be arrested at the
whim of police or law enforcement officials," said
LaFontaine. "It's very offensive to people and it's
frightening at the same time."
While acknowledging that the laws are rarely enforced and
that a 1974 SJC decision decriminalized private, consensual
sexual acts between adults, supporters say they prefer
to wipe the laws off the books rather than to tempt fate.
"It's a lot safer not to have bad laws on the books rather
than to have to rely on a court's interpretation to
determine personal liberty," said Cohen. "I think the fact
that there are laws on the books that rare rarely enforced
is an open invitation to abuse."
Attorney Thomas Hoopes, head of the criminal justice section
of the Massachusetts Bar Association, said keeping statutes
on the books that are never enforced demeans the law in
general. "If you have laws that nobody pays attention to
you devalue the law," Hoopes said. "When you have something
on the books that everybody is ignoring, how many other
things do they start to ignore too?"
Abner Mason, a member of the Log Cabin Club, a group of gay
and lesbian Republicans, and a director [sic, he's a board
member] of the Coalition for Lesbian and Gay Civil Rights,
is lobbying Republican legislators in support of the bill.
"I know many Republicans are completely in support of
limiting the role of government," he said, "getting the hand
of government out of people's pockets and their bedrooms.
It's consistent, it makes sense, and it's something
Republicans can support."
Of the 22 sponsors who have signed on as sponsors of the
bill, however, only one is a Republican, Sen. Charles E.
Shannon of Winchester. And his support at this point
extends only to reviewing all laws "in light of today's
society."
"My idea is to have them all looked at," said Shannon, who
served on the Lexington police force for 20 years. "It's
just good government . . . The court system and the law
enforcement community do not need archaic laws to fill a
book on a shelf." Shannon, however, said he has not
determined if the laws targeted in the new legislation
should be scrapped.
The trio of laws included in the legislation has prompted
different rulings when challenged before the state's highest
court. In a 1974 decision involving a man and a woman
having sex in a car in a remote area, the SJC in effect
decriminalized private, consensual sexual conduct between
adults, setting a standard of "reasonable expectation of
privacy."
But in 1983, the SJC refused to decriminalize adultery,
ruling the statute was constitutional and that the state had
a right "to regulate the institution of marriage under its
police powers" as long as it did not infringe on
"fundamental rights."
The SJC said that it was the role of the Legislature, not
the courts, to change or repeal the law.
Supporters of the bill think this is an opportune time for
passage, given Gov. Weld's support of gay rights. The
governor has not yet taken a position on the legislation.
And with the increasingly conservative tilt of the US Supreme
Court, they believe steps must be taken to safeguard
personal liberties legislatively. They point to a 1986
Supreme Court decision that upheld the right of states to
outlaw sodomy.
LaFontaine likens his group's efforts to those of abortion
rights activists who are working to guarantee access to
abortion in individual states should the Supreme Court
overturn its decision legalizing abortion.
"Increasingly, we have to look to the Legislature rather
than the federal courts in privacy issues," said Cohen.
"It's clear to me that given the number of Reagan-Bush
appointees and their youth, that for the next generation at
least the federal court is not going to be the source of new
personal liberties. If they are to come, they have to come
on the legislative level."
--gordon
Coalition for Lesbian and Gay Civil Rights
P. O. Box 611
Cambridge, MA 02238